from the crazy-uncle dept

We've written quite a few times about EU Commissioner Gunther Oettinger, a bigoted luddite, who bizarrely was put in charge of internet regulations for no clear reason at all. His main focus seemed to be on putting in place policies whose sole goal was to harm the internet because many key internet companies are American. Oettinger, who seems to be magnetically connected to all sorts of scandals has failed upward to a new job as the EU's budget chief, but as EU Parliament Member Julia Reda notes, he's still leaving a trail of internet destruction in his wake. In particular, she highlights ten everyday internet activities that would be outlawed if Oettinger's copyright and internet proposals become law. It's a pretty eye-opening list, and should raise serious questions about why Oettinger was ever put in charge of anything having to do with the internet.

Among the list of things: sharing a snippet of a news article, retweeting a "creative" new headline, posting a blog post to Facebook, posting unmoderated comments to many platforms, or uploading content to Wikipedia. There's more in the list, but the crux of Oettinger's proposals were basically written by big legacy publishers and Hollywood -- looking to hamstring any competition from the internet at all, and requiring all sorts of new regulations, payments and monitoring requirements for any internet platform that let's users actually do stuff online. Reda points out the true irony here, in that the bills wouldn't actually impact actual cyberlockers -- which the industry often claims are pits of infringement, but rather seem uniquely targeted at big, established successful internet companies by industries who have failed to adapt to a changing internet.

It's good that Oettinger is leaving that role overseeing internet regulations, but these proposals still exist and may still move forward. Hopefully, the EU's next internet regulations czar actually has a bit more of a clue.

from the solving-little,-breaking-lots dept

More and more entities involved in government work are coming out in support of encryption. (Unfortunately, many governments are still periodically entertaining backdoor legislation...) While recognizing the limits it places on law enforcement and surveillance agencies, they're not quite willing to sacrifice the security of everyone to make work easier for certain areas of the government.

The European Union for Network and Information Security (ENISA) has just released its report [PDF] on encryption and finds it to be pretty much essential for everyone's security. Any efforts to undermine this harms the public more than it helps them. (h/t Tom's Hardware)

There is a legitimate need to protect communications among individuals and between individuals and public and private organisations. Cryptography provides the electronic equivalent of letter cover, seal or rubber stamp and signature. In the light of terror attacks and organised crime, law enforcement and intelligence services have requested to create means to circumvent these protection measures. While their aims are legitimate, limiting the use of cryptographic tools will create vulnerabilities that can in turn be used by terrorists and criminals, and lower trust in electronic services, which will eventually damage industry and civil society in the EU.

Mandating backdoors will hurt the countries where they're implemented, sending customers in search of secure computer equipment and services elsewhere. Beyond that, there's the fact that all backdoors can be exploited. Thousands or millions of device users could be negatively affected while very few criminals will suffer adverse effects. If a backdoor exists, it can be exploited by either "side," but only the criminal side will be able to protect itself from unwanted intrusion. Because if you're going to break a few laws, why not break one that forbids you from owning or operating devices with non-backdoored encryption?

Or you could just roll your own...

Technology is changing at a very fast pace. It is questionable if solutions such as backdoors will be effective given that criminals can develop their own encryption technologies.

As ENISA points out, it's not just exploitation by criminals that's the problem. It's also exploitation by government agencies, which may use the handy backdoors to collect/intercept far more than they're legally allowed to.

Judicial oversight may not be a perfect solution as different interpretations of the legislation may occur.

One agent's facially-invalid search warrant is the same agent's legally-unassailable judicial order. This is enough of a problem in the US, where multiple federal districts have resulted in contradictory opinions on identical legal arguments. In the European Union, the problem is only exacerbated. Not only are there multiple courts, but also multiple nations, all with their own laws. Sure, there's an attempt to unify guidance on technical/legal issues under the EU, but only so much can be done. Deciding what is or isn't abusive use of government-mandated backdoors is going to be far from consistent. And that, of course, requires a unified European stance on encryption backdoors, which isn't likely to happen either.

Ultimately, ENISA concludes that tech advancements do pose legitimate challenges to law enforcement/national security efforts, but backdoors are no way to solve the problem. But the solution it does suggest isn't much better. Here in the US, courts routinely defer to Congress when the remedy sought isn't within their power. Over in the EU, ENISA suggests legislative measures are the wrong approach.

Other procedural approaches should be explored that focus on the power of the judicial process to find solutions.

Unfortunately, ENISA does not drop any hints about how EU courts might be able to address government agencies' complaints about encryption. This suggests some sort of All Writs Ordering might be the way around being locked out of devices and computers -- blanket court orders that compel assistance from service providers and manufacturers under the threat of whatever the court can come up with. While this would cause less damage to security than mandated backdoors, a court-ordered backdoor is still a backdoor, and judicial oversight wouldn't be enough to prevent government abuse of these "one time only," purposefully-induced security holes.

from the never-link dept

Earlier this year, we wrote about a crazy decision in the EU Court of Justice, that determined mere links could be direct infringement on commercial websites (with "commercial" being not well defined). Now as various courts in the EU try to put this ruling into practice, they're already making a mess of it. In particular, a German case has set an impossible standard for a site, finding a site to have infringed on the copyrights of a photographer for merely linking to a photograph. And the backstory here is even crazier.

The image in question was originally uploaded to Wikimedia Commons by the photographer and put under a Creative Commons license (unfortunately, no one seems to name which CC license). And then this happened:

This picture was then modified by an unknown third person, who added UFOs to the picture that appear to be flying above the building. This new picture was uploaded by the third person on his website.

The defendant operates a website where he publishes and sells educational material that he creates. In the imprint of this website, the defendant posted a sentence that included the word “UFO”, which linked to the modified “UFO-Version” of the claimant’s picture. Clicking on the word “UFO” a new browser window in which the “UFO-Version” of the picture was shown would be opened.

The photographer deemed that this constituted an infringing use of his work and brought the defendant to court.

Now, let's just review this because we're already stretching all sorts of concepts to the point of breaking. The photographer uploaded an image under a CC license to Wikimedia Commons. Someone else modified it. Someone else -- operating a site that sells educational materials -- merely linked to the modified image from the word "UFO" -- and that's who gets sued.

This seems like a classic "Steve Dallas Lawsuit" in which the target is a corporate entity because "that's where the money is" even if it makes no sense at all for the liability to be applied there.

And here's the really nutty part: the German court agreed because of that insane CJEU ruling that says a "commercial site" should be assumed to know the copyright status of everything they link to. So merely linking to this silly modified photograph, the site itself becomes liable for direct infringement. That's insane. Yes, (depending on the CC license in question), it's entirely possible that the modified version was infringing, but that's no reason to make a site that merely links to that image liable for direct infringement over it.

At this point, if you run a "commercial" website in Europe that links off site to anything, you have a tremendous liability hanging over your head due to the insanities of copyright law.

from the cost-benefit-analysis,-what's-that? dept

The death of TPP has now been confirmed by Donald Trump himself in a short video posted to YouTube. As Mike wrote recently, the other huge trade deal, TTIP, is now in limbo, probably dying, and there are rumors that even the low-profile Trade in Services Agreement (TISA) has been put on ice pending instructions from the new President. Doubtless attempts will be made to revivify them, and if those fail, there will certainly be further so-called "trade" deals -- which actually go way beyond trade -- that seek to bring in all the bad things that Techdirt has been warning about for years.

But alongside TPP, TTIP and TISA, there is one deal that is teetering on the brink of success. CETA is a smaller-scale agreement between the EU and Canada, but it's more important than it looks. It allows US companies with subsidiaries in Canada to use the agreement's corporate sovereignty provisions to sue the EU -- and there are 42,000 such companies according to one analysis (pdf). As a result, CETA has been called "TTIP by the backdoor," since it would provide a handy way for US companies to put pressure on EU nations even if TTIP suffers the same fate as TPP.

Perhaps because CETA looks increasingly like the last hope for the establishment to push through an old-style trade deal, there is now an unseemly haste on both sides of the Atlantic to ram it through the ratification process as quickly as possible, with as little scrutiny as possible. That's most clearly seen in the EU, where the normal procedures for approval have been thrown out of the window, as this post explains:

CETA will only officially arrive at the European Parliament on November 21. From then MEPs have six months to analyse, write opinions, debate and vote. But a coup of sorts has ensured none of the usual procedures count this time. The centre-left and centre right groups, that together make up the huge majority known to many of us as the "grand coalition" in the European Parliament have plotted to ensure CETA will speed so quickly through this institution that if you blink, you may miss it. They want a vote as early as December, making it impossible for the Parliament to assess CETA in any concrete terms.

Moreover:

To make matters worse, several committees who have oversight on certain aspects covered in CETA have requested their own opinions, and as it stands all have been denied. The environment and employment committees, who complained that the speedy timetable made it impossible to adequately assess CETA, were refused opinions for seemingly no reason but to silence any critique.

Last week, Steve Verheul, the lead Canadian CETA negotiator, appeared before another House of Commons committee and was asked if the department has done any analysis on the financial impact of the extended patent protection [for pharmaceutical drugs]. Remarkably, Verheul said that it has not, arguing that it is difficult to come up with a projection.

Essentially, the Canadian government has absolutely no idea how much this concession to the EU is likely to cost the people of Canada. Nor does it really have much intention of trying to calculate it, because it plans to implement CETA regardless. As in the EU, then, the Canadian public is expected to sit back and meekly allow their government to sign up to a deal with open-ended risks, thanks to corporate sovereignty, but without any proper scrutiny of the costs and alleged benefits.

And yet the politicians involved in this arrogant and anti-democratic behavior are surprised when demagogues like Donald Trump win elections.

from the form-over-function dept

You all should be familiar with a Rubik's Cube, the three-dimensional puzzle toy that for some reason your grandmother kept on her coffee table to frustrate you while she watched Matlock. This invention of the 1970s still enjoys widespread popularity, with hundreds of millions of them being sold every year. The toy has been patented for some time, but ten years ago, a British company that manages the intellectual property rights for the toy also applied for trademark protection on the cube's design in the EU. The reason for this should be obvious: patent protections last for limited amounts of time, while trademark rights exist essentially in perpetuity, so long as it's actively used in the marketplace. It's an end-around to patent law designed to lock up a monopoly.

But, in the case of the Rubik's Cube, it didn't work, as the European Union Court of Justice has correctly determined that the trademark applied for by Seven Towers was for a functional and technical solution, not one of branding. German competitor Simba Toys had challenged the trademark, and it won.

ECJ judges agreed with Simba Toys' arguments. Their decision is final and cannot be appealed.

"In examining whether registration ought to be refused on the ground that shape involved a technical solution, EUIPO and the General Court should also have taken into account non-visible functional elements represented by that shape, such as its rotating capability," they said.

EUIPO will now have to issue a new decision based on the ECJ judgment.

Representatives from Rubik's Brand Ltd. were quick to respond, breathlessly wringing their hands over how this decision will obviously destroy the brands and innovation within the toy market.

Rubik's Brand Ltd's president David Kremer said he was baffled that the court ruled that functionality or a technical solution is implicit in the trademark.

"This judgment sets a damaging precedent for companies wishing to innovate and create strong brands and distinctive marks within the EU, and is not what European lawmakers intended when they legislated for 3D trademarks," he said.

But we can set the Chicken Little shit to the side, here. The damaging precedent would have been if the court instead allowed companies to treat trademark so disdainfully as a technical end-around to patent law. There is a reason why patents have set time periods for protection and getting around them by trying to apply trademark law to that which is clearly in the realm of patents would do the very thing Kremer claims to fear: prevent innovation. After all, given how overprotective companies have become when it comes to their trademarks, it's easy to see how Rubik's would respond to any other toy maker attempting to make a toy involving anything resembling a rotating cube. This was about monopolizing a market, not innovation.

It's good to see a high court slap down attempts like this, regardless.

from the seems-like-a-problem dept

A few weeks ago, we were greatly troubled to see the ridiculous copyright policy come out of the EU Commission. The whole thing seemed like a really bad joke. It was a law basically designed to destroy entrepreneurship and startups on the internet, and to basically forcibly take money from large internet companies and give them to failing legacy media companies that had refused to innovate. It seemed to go against what basically everyone (other than those legacy companies) had been telling the European Commission. And it seemed to directly violate what the European Commission itself had said about its plans. The inclusion of things like forcing any company to install filters, the plans to require specific business models at the regulatory level, and the idea that sites should have to pay those they link to are all ridiculous.

What almost everyone involved in the process made clear, was that this whole thing was driven by one guy: Gunther Oettinger a former tax lawyer who was appointed the European Commissioner for Digital Economy and Society a few years ago, despite the fact that he's not a fan of the internet at all. If you pay any attention at all to EU politics, you may have heard the name Gunther Oettinger quite a bit lately. That's because he got caught making a series of remarks that were bigoted, racist, sexist and homophobic (he hit basically everything). He made fun of the Chinese, using racist terminology. He made fun of women in the government. He mocked gay marriage. He was on quite a roll.

Gunther Oettinger: Everything has been said. There is nothing to apologise for.

Euroactiv's James Crisp: But there is a big scandal.

Oettinger: There is no scandal.

Of course, as more and more publications around the globe started talking about it he finally was forced to release a statement with a carefully worded apology:

I had time to reflect on my speech, and I can now see that the words I used have created bad feelings and may even have hurt people. This was not my intention and I would like to apologise for any remark that was not as respectful as it should have been.

Of course, at this time, Politico has also released a big profile on what they refer to as Oettinger's "strange career." The article notes that this little bigoted outburst is not a surprise and considered no big deal to his supporters -- a columnist from his hometown describes it as "That’s just how our Oetti is," in the same way you brush off your annoying bigot of an uncle at family gatherings with his horrible opinions. Except this bigoted uncle is setting serious policy issues across Europe -- and ones that can have a major, major impact on the internet and freedom of expression, despite an almost ridiculous ignorance of technology -- something he almost seems to take glee in not caring about.

From the article:

Back in 2014, Brussels didn’t have high hopes for him when he shifted from energy to take over the digital economy portfolio. He could be curt, tearing up his notes if he deemed a subject unworthy of his attention. In the often pretentious world of Brussels officialdom, he came across as unintellectual and unserious — more likely to obsess over cars or football than trade deals or European Union directives.

To make matters worse, as a die-hard Luddite, he seemed uniquely unqualified for his new position. His more tech-savvy boss, Commission Vice President for the Digital Single Market Andrus Ansip, was at ease on social media or on the trendiest apps, like Pokemon Go.

Oettinger, as he told the crowd at his now-infamous Hamburg speech last week, preferred an old-fashioned newspaper to Twitter and document printouts to a tablet or iPhone. As he settled into his office, his aides rushed to install a computer and carry away piles of paper stacked precariously on every available surface.

In the 22 months since his appointment, Oettinger has changed little. He continues to express more interest in breakthroughs in the automotive industry than the more abstract areas of his portfolio, such as data flows or ICT standards. His home in Brussels, he told a group of reporters and tech lobbyists recently, is not set up for Wi-Fi — something he attributes to his long hours at the office. At home, he prefers “a nice bottle of Bordeaux” to a broadband connection, he added.

And yet... he's the guy in charge of crafting digital/internet and copyright policy in the EU. How does this make any sense at all? Now, there's something to be said for sometimes having an outsider's view on things, and no one's arguing that he needs to come from the internet industry or anything like that. But Oettinger not only seems to not understand and not care about the internet, but he also seems to have no problem playing political favoritism with old legacy industries where he has friends -- especially industries who have been impacted by innovation and failed to embrace the internet.

While Ansip has struggled to push forward his ambitious agenda centered around breaking down digital barriers, often referred to as geo-blocking, Oettinger has used his negotiating skills to deliver for his allies in industry, like the German publishing sector, a series of high-profile victories.

During the summer, he strong-armed his way into negotiations on boosting European startups, infuriating his more innovation-focused colleagues. Before that, he bulldozed past Vodafone to accept a plan that would keep some power over German copper network cables in the hands of giant Deutsche Telekom.

So we're left with your nutty, bigoted, luddite uncle... and put him effectively in charge of making policy choices that will impact the entire internet, and no one seems to care that he's more focused on delivering favors to his friends in the old, legacy industries that failed to adapt.

from the just-buying-some-time dept

A few days ago we described how the Belgian region of Wallonia was holding up the official signing of the EU-Canada trade deal, CETA, in part because of the corporate sovereignty chapter it contains. Not surprisingly, given the high-profile embarrassment this caused -- Canada's prime minister, Justin Trudeau, was forced to cancel his planned trip to Europe at the last minute -- the Walloon politicians have been under intense pressure to change their minds in return for some concessions. This they have now done, and a document has been published spelling out the nature of the deal they have obtained (currently only available in French and Dutch). The Council of Canadians suggests that the EU has not solved the problem, just bought some time:

The proposed compromise would give any region of Belgium the right to walk out during any part of the ratification process [which is still required, even after CETA has been signed]. Four Belgian Parliaments (the Walloon region, the French community, the German community, and the Francophone community commission of the Brussels Capital region) have made it clear that they will never ratify the Investment Court System (ICS) -- the provision that allows foreign investors to sue governments -- in its current form.

Magnette had also raised objections to the proposed court system for settling disputes between foreign investors and governments.

One concession he won means Belgium would be able to go to the European court of justice to determine whether the new investor-state special tribunals are compatible with EU law.

That's potentially big. Back in 2015, lawyers from the environmental group ClientEarth carried out an analysis of the corporate sovereignty approach -- both the older investor-state dispute settlement (ISDS) and the re-branded ICS -- and found that:

ISDS mechanisms would set up an arbitration system outside of, but binding on, the EU judicial system. Such mechanisms would introduce an additional judicial relief within the EU legal order that is independent of the EU courts. It would, in effect, be a system that would enable foreign investors to sideline the EU courts and resort to claims that are not available to domestic investors.

EU law, and settled case-law of the European Court of Justice (ECJ), suggest that such a system of external judicial control may be incompatible with the EU legal order because it would (1) undermine the autonomy of the EU legal order and the powers of the EU courts in particular and (2) negatively affect the completion of the internal market, and more specifically the EU competition rules.

Of course, some will dismiss that as simply the biased opinion of an activist organization. It's harder to ignore the views of 100 law professors from across Europe, who agree with ClientEarth, or the warning of the UN rights expert, Alfred de Zayas, not to sign the "flawed" CETA treaty, as he calls it. And "biased" certainly won't be something anyone could ever say about an ISDS ruling from the Court of Justice of the European Union (CJEU), the EU's highest court, which will be definitive once it is handed down. It will also apply to any trade deal that includes corporate sovereignty, such as TAFTA/TTIP, which is why Magnette's last-minute haggling turns out to be so important. One hint of how the CJEU might view matters is provided by the following:

ClientEarth recently launched a lawsuit against the Commission, because it refused to disclose official analysis of whether ISDS and ICS are legal. The Commission said sharing the legal reflections would undermine its negotiating position in trade agreements.

It's hard to see how an analysis that found ISDS and ICS were legal would weaken the EU's negotiating position. And it would surely be in the European Commission's interest to convince everyone that corporate sovereignty is, indeed, legal by releasing analyses supporting that view. So the fact the EU refuses to release them would naturally suggest that there is a problem somewhere, which presumably the CJEU will reveal when it comes to examine the issue.

Although the most important, the referral to the CJEU is not the only legal challenge that CETA is facing. There's one in Canada, too:

Canada's longest-serving member of the Queen’s privy Council, the Honourable Paul Hellyer, P.C., along with two co-plaintiffs, Ann Emmett and George Crowell, both prominent members of the Committee on Monetary and Economic Reform ("COMER"), launched a constitutional challenge against the much-maligned Canada-Europe Trade Agreement ("CETA"), at the Federal Court of Canada today.

Here's what they hope to obtain:

In addition to seeking several declarations, to clarify the Constitutional authority of the Executive branch of government to do this, the Plaintiff's also seek interim injunctions to prevent the federal government from signing, ratifying and implementing the CETA.

In its judgment pronounced today, the Second Senate of the Federal Constitutional Court rejected several applications for a preliminary injunction directed against the approval by the German representative in the Council of the European Union of the signing, the concluding and the provisional application of the Comprehensive Economic and Trade Agreement (CETA), which the Council of the European Union is expected to decide upon on 18 October 2016.

However, that's not as bad as it might seem at first sight. First, Germany's constitutional court imposed some quite stringent constraints on the German government. The most important of these is that the official signing of CETA will not cause the entire text to be applied provisionally, as the European Commission had originally hoped. Instead, some parts must wait until all 28 member states ratify the deal through votes in their national parliaments. That's going to take quite a while -- perhaps years -- and there's no guarantee that every country will ultimately ratify CETA. The corporate sovereignty provisions are one of the elements that will not come into force until after full ratification, something also agreed with Magnette. This means it's quite likely that the CJEU will hand down its verdict on the legality or otherwise of ICS before that, possibly killing it forever.

The other important point about the German constitutional court's decision is that it only rejected a request for a preliminary injunction, which it deemed unnecessary. The German court's full consideration of whether CETA is constitutional or not continues. The European Commission may have postponed the Wallonian problem but there are plenty of others on both sides of the Atlantic that could still stop CETA, and definitively.

from the ugh dept

Nearly a decade ago, just as YouTube was really getting popular, we questioned whether or not it would be considered infringement to merely embed a YouTube video if the content in that video were unauthorized. As we noted at the time, it seemed like a crazy idea that this should be considered infringing, given that embedding is just sticking a simple line of code on a website. No content ever actually is hosted or lives on that website. You're just telling a browser to go find content from the original YouTube source. For the most part, US courts have agreed that embedding is not infringing. And we'd thought that the EU had come to the same conclusion -- however that ruling was a bit vague, in that it focused on the embedding of authorized content, not unauthorized content.

Last month, however, there was the troubling EU Court of Justice ruling that found that mere links could be deemed direct infringement, especially if they were posted on a for-profit site. The ruling, somewhat dangerously, argued that any for-profit site that posted links should have the burden of checking to make sure the content they link to is not infringing, and it's fine to assume that they had the requisite knowledge when they link (this is, of course, crazy). And now we're seeing the reverberations of such a silly ruling.

Someone (not Ms Jonsson) uploaded the video on YouTube. On 9 January 2012 the YouTube video was embedded on the L'Avenir website run by the defendant, in the context of an article describing the incident.

The claimant had neither authorised the publication of the video on YouTube, nor its embedding in the L’Avenir article.

In her action before the Attunda District Court, Ms Jonsson claimed that L’Avenir had infringed copyright in her video by both embedding it on its website and publishing a frozen still of the video. She sought damages for EUR 1931 against the defendant, as well as award of litigation costs.

The court, looking at that bad ruling at the Court of Justice basically said, welp, L'Avenir is for profit, so it's infringing:

According to the court, it was “obvious” that L’Avenir had published the link to the claimant’s YouTube video with the intention of pursuing a profit [yet the court did not really explain what evidence supported the conclusion that in this case the defendant had a profit-making intention]. According to the court, L’Avenir had not been able to demonstrate that it had no knowledge of the unlicensed character of the video embedded on its website. Hence, L’Avenir was found to have infringed the claimant’s copyright by linking to the YouTube video without Ms Jonsson’s permission.

IP Kitten also notes that the court was supposed to then consider if L'Avenir was protected by various exceptions -- such as for news reporting -- but did not do so. This should be pretty troubling for all sorts of news sites online, who regularly embed videos or link to content without having the ability to determine whether or not they are infringing. This will make some fairly basic aspects of reporting online a huge liability risk. Linking to the wrong site or embedding the wrong video now puts you at risk of copyright infringement claims in the EU -- which is crazy. Copyright law is really broken.

from the oh-ok dept

We've seen all manner of silly claims by copyright licensing groups as to what requires what kind of license in every kind of circumstance. These licensing groups have gone after children's charities. A UK collection society had the strategy of calling up local businesses and demanding payments should they hear music playing in the background. The Author's Guild once claimed that reading a book out loud constituted the need for a separate license, while ASCAP asserted with a straight face that the ring of a mobile phone was a public performance. This panoply of idiocy might be funny, except for the very real harm done through this kind of harassment.

Even the good stories in this vein weigh heavily in that they are necessary at all. For instance, the advocate general for the EU's Court of Justice recently wrote an opinion advising that hotels didn't need a copyright license just to have televisions within guest rooms. It's a good ruling, but conjures the frustrating question as to why it was needed in the first place. The answer, of course, is because a collection group was attempting to collect from hotels for just that reason.

On Monday, Court of Justice of the European Union advocate general Maciej Szpunar published his opinion on a case brought by the Verwertungsgesellschaft Rundfunk, a royalty collecting and copyright management company comparable to the BPI in the UK or MPAA in the US. The collecting company had asked a local court to force a hotel to pay extra licensing fees because guests were watching TV in their rooms. Vienna's Commercial Court, in its turn, sought guidance from the CJEU on how EU copyright law should be interpreted in this case.

At issue in this case was an EU directive on rental and lending rights, which affords broadcasters the right to allow or not allow the rebroadcasting of their content to the public. Specifically, the law states that this right applies only when an entrance fee to view such content is levied by the rebroadcaster. What the collection society argued was that hotels were levying such a fee, because it included televisions in rooms for which they were charging guests. That isn't remotely how the law was supposed to be applied.

But Verwertungsgesellschaft Rundfunk made the argument anyway, because facts and truth have no place in the realm of a collection society, where the only goal is to seek as much rent as possible in every circumstance, while providing as little value as possible. Again, it's a good opinion, but it's not a ruling in the case. That ruling will be taken up by the other justices on the court and they will take Szpunar's opinion on the matter into account. The general feeling appears to be that the court will side with Szpunar's opinion, which is also good.

from the book-of-laughter-and-forgetting dept

As Techdirt reported last year, the problematic "right to be forgotten" -- strictly speaking, a right to be delisted from search results -- took a really dangerous turn when the French data protection regulator told Google that its orders to delist results should apply globally, not just in France, a view it confirmedtwice. The latest development in this saga is the submission of a petition to the French Supreme Court against the global reach of delisting, made by the Wikimedia Foundation, the organization behind Wikipedia. As its blog post on the move explains:

Although the [French data protection authority] CNIL's case is directed towards Google, the gradual disappearance of Wikimedia pages from Google search results around the world ultimately impacts the public's ability to find the invaluable knowledge contained within the Wikimedia projects. Search engines have played an important role in the quest for knowledge -- roughly half of Wikipedia visits originate from search engines.

The CNIL's most recent order, if upheld, threatens the capacity to write and share important information about history, public figures, and more. It undermines the public's ability to find relevant and neutral information on the internet, and would make it exceedingly difficult for projects like Wikimedia's to provide information that is important for society.

The fact that half of Wikipedia's visits come from online searches emphasizes the point that delisting a page from search results effectively removes it from the Internet. The Wikimedia post goes on to make all the obvious -- and completely valid -- arguments why global delisting is such a bad idea. It also mentions the following:

As part of our efforts to bring more transparency to these requests, when we receive notice that a Wikipedia article was removed from a search engine due to a "right to be forgotten" delisting request, we publish the notice in a public index for the Wikimedia community's reference.

The page not only includes interesting statistics about delisting notices, but also helpfully provides copies of the notices themselves. From these we can see the Wikipedia articles that are no longer listed in search engines, which allows us to guess the names of those who don't want information about them to be readily available, and inevitably encourages us to speculate why that might be.